The ne bis in idem principle in EU law : a conceptual and jurisprudential analysis
Bockel, W.B. van
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Bockel, W. B. van. (2009, June 16). The ne bis in idem principle in EU law : a conceptual and jurisprudential analysis. Meijers-reeks. Retrieved from
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A conceptual and jurisprudential analysis
PROEFSCHRIFT
ter verkrijging van
de graad van Doctor aan de Universiteit Leiden,
op gezag van Rector Magnificus prof. mr. P.F. van der Heijden, volgens besluit van het College voor Promoties
te verdedigen op dinsdag 16 juni 2009 klokke 11.15 uur
door
Willem Bastiaan van Bockel
geboren te Amsterdam in 1973
Promotor: prof. dr. P.J. Slot
Overige leden: prof. dr. Th. Ackermann (Universiteit van Erlangen- Nürnberg, Duitsland)
prof. dr. J.H.J. Bourgeois (Collège d’Europe, België) prof. dr. R.A. Lawson
prof. mr. J.L. de Wijckerslooth
Lay-out: Anne-Marie Krens – Tekstbeeld – Oegstgeest Druk: Ipskamp Drukkers, Amsterdam
ISBN 978-90-9024382-5
© 2009 B. van Bockel, Leiden
Behoudens de in of krachtens de Auteurswet van 1912 gestelde uitzonderingen mag niets uit deze uitgave worden verveelvoudigd, opgeslagen in een geautomatiseerd gegevensbestand, of openbaar gemaakt, in enige vorm of op enige wijze, hetzij elektronisch, mechanisch, door fotokopieën, opnamen of enige andere manier, zonder voorafgaande schriftelijke toestemming van de uitgever.
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No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means without written permission from the publisher.
This dissertation is the result of two conversations. In the first, which took place in December of 2003, professor Piet Jan Slot pointed me in the direction of examining the adverse consequences of parallel enforcement in competition cases. The conversation which resulted in the specific subject of this thesis was with Eddy de Smijter in May of 2005. By then Regulation 1/2003 had entered into force, opening up the possibility of parallel application ofECcompetition law within the European Competition Network. Furthermore, a draft of the
‘Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings’1had just been prepared. The following years saw a rapid succession of ground breaking new cases on the ne bis in idem-principle, and I could not have come across this topic at a better time.
There are many other people to whom I owe thanks. Among them are my promotor Piet Jan Slot and my colleagues at the Europa Institute. I look back on a great time, and I thank you all for your friendship and support. Special thanks also to Christa Tobler and her partner Jacques for their kind hospitality, which made all the difference.
There are many others: my partner Françoise, my friends, my foster family.
Last but certainly not least I want to thank Paul de Klerk, for everything.
Rome, 23 May 2009 Bastiaan van Bockel
1 Green Paper On Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings, COM(2005) 696 final, Annex.
LIST OFABBREVIATIONS XV
1 SCOPE,RESEARCH QUESTIONS,AND METHODOLOGY 1
1.1 Introduction: the ne bis in idem principle 1
1.2 The problem: the ne bis in idem principle in the EU legal order 2
1.2.1 Introduction 2
1.2.2 Initiatives and proposals aimed at reinforcing the application of the ne bis in idem principle within the legal
system of the EU 4
1.3 This study 6
1.3.1 Aim 6
1.3.2 Method 7
1.3.3 Scope 7
1.4 Set-up of the study 8
2 INTRODUCING THE PRINCIPLE OF NE BIS IN IDEM:SOURCES AND CONCEPTS 11
2.1 This chapter 11
2.2 Sources of the ne bis in idem principle in international instrume12nts
2.2.1 Introduction 12
2.2.2 Article 14(7) ICCPR 14
2.2.3 Art. 4 Protocol 7 ECHR 16
2.2.4 Art. 50 of the Charter of Fundamental Rights of the
European Union 18
2.2.5 Arts. 54 et seq. CISA 21
2.2.6 Issues arising out of the scope and wording of the
provisions 25
2.3 Rationale of the ne bis in idem principle 28
2.3.1 General 28
2.3.2 Distinction between the functions of the principle 28 2.3.3 Some of the rationale underlying the guarantee as an
individual’s right 29
2.3.4 The interests of society as a whole 30
2.3.5 The problem of defining the rationale of the principle on
the international level 31
2.4 Form and substance of the principle 33
2.4.1 The question of the principle’s origins in Roman law 33
2.4.2 Ne bis in idem rules 33
2.4.2.1 Prohibition of double prosecution (‘Erledigungsprinzip’) 34
2.4.2.2 Prohibition of double punishment 35
2.4.2.3 The problem of defining the substance of the guarantee 36
2.5 Scope of application 40
2.5.1 Limitations to the objective scope of application of the
principle 40
2.5.2 Internationalisation and ‘territoriality’ 42
2.5.3 Subjective scope of application 43
2.5.4 Scope of application of the provisions ratione materiae 44
2.6 Elements 45
2.6.1 The first trial: bis 45
2.6.2 The second trial: idem 48
2.6.3 The requirement of enforcement of the penalty 54
2.7 Exceptions 54
Provisional summary 55
3 THE SUPRANATIONAL CONTEXT:THE CRIMINAL LAW DIMENSION OF THEEU 57
3.1 This chapter 57
3.2 Introduction: EU criminal law in the wider sense 57
3.3 Developments in enhanced cooperation 59
3.3.1 Introduction 59
3.3.2 The Maastricht and Amsterdam Treaties 60
3.3.3 The Lisbon Treaty 62
3.3.4 Mutual recognition in an Area of Freedom, Security and
Justice 63
3.4 The Schengen acquis 65
3.4.1 Introduction 65
3.4.2 The integration of the Schengen acquis into the framework
of the EU 65
3.4.3 The functioning of the Schengen acquis in the framework
of the EU 67
3.5 The necessity of a ne bis in idem principle in the context of enhanced cooperation in criminal matters within the Union 68
3.5.1 Introduction 68
3.5.2 Art. 54 CISA 69
3.5.3 Further initiatives 70
3.5.4 Art. 54 CISA and mutual recognition 71
3.6 The additional necessity of coordinating criminal investigations and
prosecutions 72
3.6.1 Introduction 72
3.6.2 Eurojust, the EJN, and Europol 72
3.7 Summary findings 73
3.8 Harmonisation of criminal law 74
3.8.1 Introduction 74
3.8.2 EU competences 74
3.8.3 Competences of the Community 75
3.9 EC competition law 76
3.9.1 Introduction 76
3.9.2 The nature of competition law 77
3.9.3 The ‘single market imperative’ 80
3.10 The enforcement of EC competition law 81
3.10.1 Introduction 81
3.10.2 Regulation 17/62 82
3.10.3 Developments that led to the modernisation of the system
of enforcement of EC competition law 86
3.10.4 Modernisation and decentralisation through Regulation
1/2003 88
3.10.5 The regulation of the relationship between the Treaty provisions and national competition laws in art. 3 of
Regulation 1/2003 89
3.10.6 Concurrent jurisdiction and the allocation of cases 94 3.10.7 The absence of a ne bis in idem provision from Regulation
1/2003 97
3.10.8 Fining in EC competition law: fines imposed by the
European Commission 100
3.10.9 Fining in EC competition law: fines imposed by NCA’s 104
3.10.10 Leniency 106
3.10.11 Settlements in EC competition law 108
3.10.12 ‘Criminalization’ of competition law? 110
3.10.13 Private damages 111
3.11 The international dimension of EC competition law 113
3.11.1 Introduction 113
3.11.2 Extraterritoriality 114
3.11.3 Convergence 114
3.11.4 Multilateral initiatives 116
3.11.5 Bilateral cooperation agreements between the US and the EU 121
4 THE CASE LAW OF THEEUROPEANCOURT OFJUSTICE ON THE NE BIS IN IDEM
PRINCIPLE 127
4.1 This chapter 127
4.2 The role of the case law of the European Court of Human Rights
in the case law of the the European Court of Justice 127
4.3 The substance of the prohibitions 129
4.3.1 Introduction 129
4.3.2 The substance of the ne bis in idem principle in the case
law of the European Court of Justice 131
4.4 Rationale of the guarantees 137
4.4.1 Introduction 137
4.4.2 The rationale of the Anrechnungsprinzip in the case law of
the European Court of Justice 138
4.4.3 The rationale of the Erledigungsprinzip in the case law of
the European Court of Justice 139
4.5 Objective scope of application of the guarantees 141
4.5.1 Introduction 141
4.5.2 The case law of the European Court of Justice concerning the objective scope of application of the
Anrechnungsprinzip in Community law 142
4.5.3 The case law of the European Court of Justice concerning the objective scope of application of the Erledigungsprinzip
in Community law 149
4.6 Subjective scope of application of the guarantees 153
4.6.1 Introduction 153
4.6.2 The subjective scope of application of the guarantees in
the case law of the European Court of Justice 154 4.7 Scope of application ratione materiae of the guarantees 155
4.7.1 Introduction 155
4.7.2 The case law of the European Court of Justice concerning
the scope of application ratione materiae of the guarantees 156 4.8 Scope of application ratione temporis of the guarantees 161
4.8.1 Introduction 161
4.8.2 The case law of the European Court of Justice concerning
the scope of application ratione temporis of the guarantees 161
4.9 Finality (res iudicata) 163
4.9.1 Introduction 163
4.9.2 The case law of the European Court of Justice concerning
the finality of the outcome of proceedings 165
4.10 ‘Idem’: the same act or offence 170
4.10.1 Introduction 170
4.10.2 The case law of the European Court of Justice concerning
the interpretation of the element of idem 172 4.10.3 The requirement of enforcement of the penalty 181 4.10.4 The case law of the European Court of Justice concerning
the requirement of enforcement of the penalty 181
Provisional summary 182
5 THE CASE LAW OF THEEUROPEANCOURT OFHUMANRIGHTS ON THE NE BIS
IN IDEM PRINCIPLE IN ART4OFPROTOCOL7 ECHR 185
5.1 This chapter 185
5.2 The substance of the rules contained in art. 4P7 ECHR 185
5.2.1 Introduction 185
5.2.2 The substance of the ne bis in idem principle in the case
law of the European Court of Human Rights 186 5.3 The rationale of the guarantees laid down in art. 4P7 ECHR 189
5.3.1 Introduction 189
5.3.2 The case law of the European Court of Human Rights concerning the rationale of the guarantees laid down in
art. 4P7 ECHR 189
5.4 The scope of application ratione materiae of art. 4P7 ECHR 190
5.4.1 Introduction 190
5.4.2 The case law of the European Court of Human Rights concerning the scope of application ratione materiae of art.
4P7 ECHR 191
5.5 The scope of application ratione temporis of art. 4P7 ECHR 195
5.5.1 Introduction 195
5.5.2 The case law of the European Court of Human Rights concerning the scope of application ratione temporis of the
guarantees 195
5.6 Finality 196
5.6.1 Introduction 196
5.6.2 The case law of the European Court of Human Rights concerning the finality of the outcome of the first
proceedings 197
5.7 Idem 203
5.7.1 Introduction 203
5.7.2 The case law of the European Court of Human Rights concerning the interpretation of ‘the same offence’ in art.
4P7 ECHR 204
5.8 Exceptions 214
5.8.1 Introduction 214
5.8.2 The case law of the European Court of Human Rights
concerning art. 4(2)P7 ECHR 214
Provisional summary 215
6 ANALYSIS:THE NE BIS IN IDEM PRINCIPLE IN THE LEGAL ORDER OF THEEU 217
6.1 This chapter 217
6.2 A single ne bis in idem principle within the EU legal order? 217
6.2.1 General 217
6.2.2 Evidence from the case law 218
6.2.3 What if the Charter becomes legally binding? 220 6.2.4 Findings: a single, autonomous, and uniformly applicable
general principle of Community law 221
6.3 The substance of the ne bis in idem principle 221
6.3.1 Introduction 221
6.3.2 Analysis 222
6.3.3 Findings 223
6.4 Objective scope of application of the guarantees in Community law 225
6.4.1 Introduction 225
6.4.2 Analysis 226
6.4.3 Findings 230
6.5 Subjective scope of application of the guarantees 231
6.5.1 Introduction 231
6.5.2 Analysis 231
6.5.3 Findings 233
6.6 The scope of application ratione materiae of the guarantees 233
6.6.1 Introduction 233
6.6.2 Analysis 234
6.6.3 Findings 234
6.7 The scope of application ratione temporis of the guarantees 235
6.7.1 Introduction 235
6.7.2 Analysis 235
6.7.3 Findings 236
6.8 Finality (res iudicata) 236
6.8.1 Introduction 236
6.8.2 Analysis 237
6.8.3 Findings 240
6.9 Idem (the same) 242
6.9.1 Introduction 242
6.9.2 Analysis 243
6.9.3 Findings 245
6.10 The requirement of enforcement 246
6.10.1 Introduction 246
6.10.2 Analysis 246
6.10.3 Findings 247
6.11 Exceptions 247
6.11.1 Introduction 247
6.11.2 Analysis 247
6.11.3 Findings 248
7 CONCLUSIONS 249
SAMENVATTING 255
LITERATURE 261
CASE LAW 275
CURRICULUM VITAE 289
Appl. No. Application number
Art. Article
1991 Agreement Agreement between the Government of the United States of America and the Commission of the European Communities regarding the application of their
competition laws – Exchange of interpretative letters with the Government of the United States of America
1998 Agreement Agreement between the European Communities and the Government of the United States of America on the application of positive comity principles in the enforcement of their competition laws
AFSJ Area of Freedom, Security and Justice
The Charter Charter of Fundamental Rights of the European Union
CFI Court of First Instance
CIA Central Intelligence Agency
CISA Convention of 19 June 1990 implementing the Schengen Agreement
CoE Council of Europe
c.p. ‘concerted practice’ within the meaning of art. 81 EC EC (Treaty establishing the) European Community
ECJ European Court of Justice
ECHR European Convention on Human Rights and Fundamental Freedoms
ECMR European Community Merger Regulation
ECSC (Treaty establishing the) European Coal and Steel Community
ECR European Court Reports
ECtHR European Court of Human Rights
EEA European Economic Area
EU European Union
Europol Convention Convention of 26 July 1995 on the establishment of a European Police Office
FDEAW Framework Decision on the European Arrest Warrant GPCL General principles of Community Law
i.e. id est (‘that is’)
JHA Justice and Home Affairs
Lisbon Treaty Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, [2007] OJ C350/1
ne bis in idem ne bis in eadem re sit actio
NGO non-governmental organization
n.y.r. not yet reported in ECR
p. page
pp. pages
para. paragraph
pnt. point
4P7 ECHR Article 4 of the seventh Protocol of the ECHR
Regulation 17/62 Council Regulation (EEC) No 17/62 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty
Regulation 1/2003 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty
Schengen Agreement Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (1985)
Schengen Protocol Protocol integrating the Schengen acquis into the framework of the European Union
SIS Schengen Information System
TEU Treaty on European Union
The Hague Progamme Council doc. 16504/04, 13 December 2004, Strengthening Freedom, Security and Justice in the European Union
US United States of America
In this first chapter the subject of this study is introduced. The background, scope and research questions of this study are explained.
1.1 INTRODUCTION:THE NE BIS IN IDEM PRINCIPLE
The principle of ne bis in idem is an important fundamental principle of law which restricts the possibility of a defendant being prosecuted repeatedly on the basis of the same offence, act or facts.1The principle has a long history;
the earliest known reference to the ne bis in idem principle originates from approximately 355BC, when Demosthenes reasoned that ‘the laws forbid the same man to be tried twice on the same issue’.2The principle appeared again in Justinian’s Corpus Juris Civilis.3 The ecclesiastical ne bis in idem principle (as a principle of natural law) is based on St Jerome’s comment on the prophet Nahum: ‘for God judges not twice for the same offence’.4It is believed that the protection against double jeopardy, its equivalent in common law, is as old as the common law itself.5
The apparent simplicity of the ne bis in idem rule is generally considered to be deceptive, the principle is actually rather complex.6Within the applica- tion of the ne bis in idem principle, the tension between the ideals of material justice and the security of law is often particularly apparent.7
1 Bourgeois 2007, p. 313, Wils 2003 I, p. 131.
2 “Speech against Leptines” (355 BC), Demosthenes I, translated by J. H. Vince, Harvard University Press, 1962.
3 Dig.48.2.7.2 and Cj.9.2.9pr: 529-534 AD. On the history of the principle, see in particular:
Sigler 1963.
4 “Non iudicat Deus bis in id ipsum” (also: “idipsum”), from St. Jerome’s commentary on the Prophet Nahum, Book 1, reference cited from Bourgeois 2007, p. 313 (footnote 1).
5 Hunter 1984, pp. 3-4.
6 Trechsel 2005, p. 381.
7 Spinellis 2005, p. 1149.
1.2 THE PROBLEM:THE NE BIS IN IDEM PRINCIPLE IN THE EU LEGAL ORDER
1.2.1 Introduction
Although it is virtually undisputed that multiple prosecutions are harmful to both private as well as public interests, there is no rule of mandatory public international law offering international protection against double jeopardy in international situations.8Conduct giving rise to criminal liability in more than one jurisdiction is traditionally regarded as constituting separate offences in each of the jurisdictions concerned.
This traditional non-application of the ne bis in idem principle on the inter- national level is increasingly called into question.9Amongst other things, this is to some extent evidenced by the fact that several international instruments establishing international criminal law tribunals have provided for ne bis in idem provisions between each other, and between them and national juris- dictions.10 Furthermore, some international conventions have provided for
“certain legal consequences in application of the principle in the relations between States”.11The most comprehensive provision in a convention estab- lishing an international ne bis in idem principle as an individual’s right erga omnes to date is undoubtedly Article 54 of the Convention on the Implementa- tion of the Schengen Agreement (“CISA”), a provision within the EU’s Third Pillar.12According to some, Article 54CISAcan be seen as the first real attempt at internationalising ne bis in idem, in a legal area that consists of the partici- pating Member States of the EU, supplemented by Iceland, Norway, and Switzerland.13
8 Vervaele 2005, p. 102; Spinellis 2002, p. 1150; Hoet 2004, pp. 31 & 50. Cassese argues that the “internal” ne bis in idem principle “may be held to be prescribed by a customary rule of international law”, whereas the status of an “equivalent international principle is still controversial” (Cassese 2003).
9 Spinellis 2002, p. 1150.
10 The statutes of the international criminal tribunals for the former Yugoslavia and Rwanda, and the Statute of the International Criminal Court. See: Spinellis 2002, p. 1151.
11 Spinellis 2002, p. 1150.
12 Vervaele 2005, p. 107.
13 ‘Agreement concluded between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis’, signed on 26 October 2004 (Council Decision of 25 October 2004, [2004] OJ L370/78). Since an open border policy has existed between Switzerland and Liechtenstein for several decades, Article 16 of the agreement already anticipated Liechtenstein’s association with the Schengen acquis, and further steps have been taken to effectuate this. After a slight delay due to some problems concerning the implementation of the second generation Schengen Information System (“SIS II”), Switzerland became fully associated with the Schengen-area on December12, 2008, although for air travel to and from Switzerland, passports checks continued to be conducted until March 2009. Liechtenstein is set to join ‘Schengen’ in the first half of 2009.
In spite of this, the legal framework for the protection of the right not to be tried twice inEC andEU law on the whole is confusing, and still leaves much to be desired. The interpretation and application of the ne bis in idem principle in the legal framework of theEUgives rise to several types of prob- lems, which are briefly set out below.
One of the main problems in discussing the ne bis in idem principle from the European perspective is the difficulty of defining “Europe”. In 2003, Hans- Jürgen Bartsch commented that “(a)s regards the application of ne bis in idem, several different frameworks need to be considered: the Council of Europe (...), the European Union (...), and the Schengen Area (...). In each of them the application of the principle is governed by different legal instruments, with the added complication that the Schengen-acquis, although applicable only in the participating states, has been integrated into the European Union frame- work by virtue of a protocol to the 1997 Amsterdam Treaty (on European Union). Moreover, allEUMember States are also members of the Council of Europe, and, as such, many – and in some cases most of them – are party to the conventions concluded within that organization.”14
The fact that a number of –differently worded- ne bis in idem provisions exist within different ‘European’ frameworks is however not the only problem for the protection from double jeopardy within theEU. The European Court of Justice (the “ECJ”) has, from the early 1970’s on, developed a full range of general principles of Community law through its case law, amongst which the ne bis in idem principle.15The introduction of Article 54CISAinto the legal order of theEUhas led to two ‘lines’ in the case law before theECJconcerning the ne bis in idem principle, one concerning the ne bis in idem principle as a general principle of Community law, the other concerning Article 54CISA. These two lines of case law on the ne bis in idem principle are not fully con- sistent with one another, giving rise to confusion and conflict within the case law of the Community courts on this point.16
A third problem is the issue of positive conflicts of jurisdiction and the allocation of cases between the Member States. Although it is a necessary instrument for the regulation of transnational justice, the ne bis in idem principle does not regulate criminal law jurisdiction between the Member States. The application of the ne bis in idem principle within theEUleads to a system of
‘first come, first served’: the first Member State in which proceedings against a subject are conducted which result in a final outcome of the case (res iudicata) is therefore the only Member State to pass judgment on the subject in question, in respect of certain conduct. Presently, there are no guarantees that this will
14 Bartsch 2003, p. 1163.
15 Vervaele 2004, p. 795; see also Sevenster 1992.
16 AG Sharpston argued in her Opinion of 15 June 2006 in Case C-467/04 Gasparini [2006]
ECR I-9199 (para.’s 61-63, that there are “inconsistencies” between the case-law on Article 54 of the CISA, and the case-law on ne bis in idem as a ‘fundamental principle of EC law’.
be the Member State which is in the best position to proceed. Additional mechanisms for the coordination of the allocation of cases between the author- ities in the Member States are therefore necessary.
Fourthly, there are some indications that the interpretation and application of certain aspects ofEUlaw such as the ne bis in idem principle may pose some problems for national courts. To give one example: on June 7 2008, the Dutch newspaper NRC Handelsblad wrote that Dutch judges are, overall, unfamiliar with important aspects ofEUcriminal law.17The example given by the news- paper is that judges in The Netherlands would not have familiarised them- selves with the case law of theECJon theEAWand on Article 54CISAin par- ticular. The article went on to state that there are even indications that some judges are altogether unaware of the existence of “disculpating provisions in
EUlaw” such as Article 54CISA.
A fifth and final problem for the ne bis in idem rule in Article 54CISAare the exception possibilities to that provision laid down in Article 55CISA. Those exceptions are broad and vague in wording, potentially undermining the application of the guarantee between the Member States.
1.2.2 Initiatives and proposals aimed at reinforcing the application of the ne bis in idem principle within the legal system of theEU
In order to tackle these and other problems, several initiatives and proposals have been launched, aimed at strengthening the position and the application of the ne bis in idem principle within theEUlegal order.
In 2003, the Republic of Greece submitted a proposal for a Framework Decision, which would have to replace Articles 54-58CISA.18The main aim of the proposal was to offer further clarification of the transnational ne bis in idem rule, amongst other things by defining the concept of ‘criminal offence’
broadly.19Furthermore, the proposal included an exception to the ne bis in idem rule in case of new and previously undiscovered evidence (novum),20 and what could (perhaps) be seen as a soft law “mechanism” for the resolution of positive conflicts of jurisdiction: a list of criteria, relevant for the allocation of cases between the Member States.21
For various reasons, the proposal met strong criticism and was never adopted. The general consensus appeared to be that it might be better to wait
17 NRC handelsblad of 7 June 2008, “Nederlandse rechter kent EU-wet niet”.
18 Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision concerning the application of the ‘ne bis in idem’ principle, [2003] OJ C 100/24.
19 In the proposal, criminal offences are defined as offences, covered by national provisions of criminal law as well as “administrative offences or breaches of the order”, punishable by a fine (Article 1(a) of the proposed Framework Decision).
20 Article 2(2) of the proposed Framework Decision.
21 Article 3 of the proposed Framework Decision.
for the Commission to take action, where matters under the Third Pillar are concerned.22
Another (private) initiative from 2003 was the so-called “Freiburg proposal on concurrent jurisdictions and the prohibition of multiple prosecutions in the European Union”.23 The proposal presented a three-step approach to resolving various issues in the context of the application of the ne bis in idem principle within theEU. In the first step, the proposal attempted to resolve various issues concerning the coordination of concurrent jurisdiction in criminal cases in the pre-trial stages of the prosecution. The second step was a clarifica- tion of various aspects of the ‘European’ ne bis in idem principle; the third step concerned the clarification and application of the prohibition of double punish- ment.
In 2005, the Commission launched a public consultation on the ne bis in idem principle and the issue of positive jurisdiction conflicts.24 The ‘Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings’, addressed three main issues:25
· the need to clarify “certain elements and definitions” concerning the ne bis in idem principle contained in Article 54CISA;
· the question whether the requirement that a penalty has to have been
“enforced, is actually in the process of being enforced or can no longer be enforced”, contained in Article 54CISA, is still appropriate within the
EU;
· the question whether there is still any need for the derogations contained in Article 55CISA
Furthermore, the Green Paper outlined the possibilities for the creation of a mechanism for allocating cases to an appropriate jurisdiction.
It must be said that the scope of this consultation was rather narrow.
Amongst other things, the issue of parallel prosecutions was excluded from the Green Paper. Although no Commission proposal has so far resulted from this consultation, it did produce a response from several Member States, national parliaments, and various organizations.26
22 The Law Society of England and Whales – Subcommittee E- Inquiry into the initiation of EU legislation, at para. 32 (http://www.parliament.uk/documents/upload/LawSociety EnglandWales.04.08.pdf).
23 Max-Planck-Institut für ausländisches und internatiuonales strafrecht 2003, available from:
http://www.mpicc.de/ww/de/pub/forschung/forschungsarbeit/strafrecht/archiv/
freiburg_proposal.htm.
24 COM (2005) 696 final, Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings.
25 See also the accompanying information on ScadPlus: http://europa.eu/scadplus/leg/en/
lvb/l16011.htm.
26 Available from: http://ec.europa.eu/justice_home/news/consulting_public/conflicts_
jurisdiction/news_contributions_conflicts_jurisdiction_en.htm.
Amongst other things, it appears from the reactions to the consultation that many feel that the jurisprudence of theECJon the ne bis in idem principle is just beginning to take shape, and that there is a need for further clarification of the principle itself, before any further steps are considered or taken.27This leads us directly to the aim of this study.
1.3 THIS STUDY
1.3.1 Aim
This study is an attempt to further strengthen the position and the application of the ne bis in idem principle by examining and further clarifying the substance, scope and interpretation of the principle within the legal order of theEU, as it is (lex lata), or as it ought to be (lex ferenda).
The purpose of this study is therefore not to address each and every issue which may arise in connection with the application of the ne bis in idem prin- ciple within the legal order of the EU, but merely to take the next step in further developing and refining the ‘European’ ne bis in idem principle. Further- more, this study does not propose or discuss the possibility of implementing mechanisms for the resolution of positive jurisdiction conflicts or the allocation of jurisdiction in criminal matters within theEU.
In sum, the purpose of this study is to contribute to a more in-depth understanding of the ne bis in idem principle inEUlaw, amongst other things as a prerequisite for any future initiatives or proposals on these points.
27 See, amongst others: Ministerio de Justicia, Kingdom of Spain – Comments on the Green Paper on Conflicts of Jurisdiction and the principle of ne bis in idem in criminal proceedings, pp. 2-3;
Response by the Netherlands Government to the Green Paper on Conflicts of Jurisdiction and the principle of ne bis in idem in criminal proceedings, pp. 8-9; Bar Council of England and Wales –Response to Commission’s December2005 Green Paper COM (2005) 696 final, pp. 12, 15, 19, 20, 21, and 22; Council of Bars and Law Societies in Europe – CCBE response to the Green Paper on Conflicts of Jurisdiction and the Principle of Ne Bis In Idem, p. 3; and finally pp. 1-3 of the Reaction to the Green Paper on Conflicts of Jurisdiction and the principle of ne bis in idem in criminal proceedings on behalf of the Europa Institute, Leiden University. In her Comments on the Green Paper on Conflicts of Jurisdiction and the principle of ne bis in idem in criminal pro- ceedings on behalf of the Max Planck Institute, Juliette Lelieur-Fischer identified many points requiring further clarification, but argued that these issues require legislative intervention (Juliette Lelieur-Fischer, Comments on the Green Paper on Conflicts of Jurisdiction and the principle of ne bis in idem in criminal proceedings, pp. 13-20). The ‘Meijers Standing Committee of Experts on International Immigration, Refugee and Criminal Law’ strongly disagreed, pointing out that the ECJ is doing “very well” in interpreting and applying Article 54 CISA (Response of the Standing Committee of Experts on International Immigration, Refugee and Criminal Law, p. 4). All contributions are available from: http://ec.europa.eu/justice_home/news/
consulting_public/conflicts_jurisdiction/news_contributions_conflicts_jurisdiction_en.htm.
1.3.2 Method
The research method used in this study is often used in legal research. Some would refer to it as “black letter law”, and this study certainly belongs in that category. What the phrase “black letter law” refers to are the basic standard elements in a particular field of law. As these standard elements are not found in any one source, one has to research a particular field of law in order to determine them.
As the title suggests, this study approaches the ne bis in idem principle in
EUlaw in two different ways: by way of conceptual analysis (the first step of the research), and through a jurisprudential analysis of the case law of theECJ
and theECtHR(the second step). There is no universally accepted ne bis in idem rule or provision available on the international level, which could serve as a point of reference for a study such as this one. The purpose of the conceptual analysis is therefore to provide a basic conceptual framework for the purposes of this study, by examining and considering various aspects of the ne bis in idem principle as much as possible independently from the specific context of the legal systems of theEUand the Member States, in which the principle exists.
In the second step, the case law of theECJ, the Court of First Instance (the
“CFI”) and the European Court of Human Rights (the “ECtHR”) concerning the ne bis in idem principle and the prohibition of double prosecution is analyzed on the main points.
In the third step, the findings from the first and second step of the research are brought together and examined in the broader context of the legal order of theEU, in order to draw conclusions.
1.3.3 Scope
This study focuses on the ne bis in idem principle inECandEUlaw. According to established case law before theECJ, fundamental rights “form an integral part of the general principles of law whose observance the Court ensures”.28 In formulating and applying those rights, the Court “draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories”, whereby the ECHR “has special significance”.29 Furthermore, Article 6(2)EUrefers to the ‘fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms
28 Most recently, see: Joined Cases C-402/05 P and C-415/05 P Kadi (n.y.r.), para. 283.
29 Para. 283 of the Kadi judgment
signed in Rome on 4 November 1950’, that the Union shall respect. The Con- vention on Human Rights (ECHR), as well as the case law before theECtHR
therefore come within the scope of this study, and will be discussed and analysed.
The “constitutional traditions common to the Member States” are not homogeneous on the point of the ne bis in idem principle. As several athors have found, there are considerable differences in the way the principle is construed within national systems of law.30These differences are not necessar- ily decisive for the way the ne bis in idem principle is interpreted and applied in the case law of the Community courts. In formulating general principles of Community law, the European Court of Justice does not carry out a com- parative analysis of the national laws of the Member States on a particular point in order to identify a common denominator.31The European Court of Justice has – at best – taken an eclectic or ‘holistic’ rather than a systematic approach to identifying the rights contained in the constitutional traditions common to the Member States, from which it draws ‘inspiration’ in formulating fundamental rights as general principles of Community law.32For these (and similar) reasons, this study does not propose carry out a comparative analysis of the ne bis in idem rule in the legal systems of the Member States. Neverthe- less, as Tridimas points out, “the raw material is found, inevitably, in the laws of Member States”, and the importance of the legal traditions of the Member States for developments in the case law of the Community courts where it concerns fundamental legal principles such as ne bis in idem should therefore not be underestimated.33For this reason this study considers the main aspects of several of the various ne bis in idem rules which exist within the legal systems of the Member States at several points, in particular in the following chapter.34
1.4 SET-UP OF THE STUDY
The set-up of this study is as follows. In chapter 2, the ne bis in idem principle is conceptually introduced and explored. The various ne bis in idem provisions relevant to this study are presented and discussed, and various aspects of the ne bis in idem principle are explored and discussed, as much as possible in-
30 Vervaele 2005, p. 100; De la Cuesta 2002, p. 708.
31 Tridimas 2006, pp. 20-21.
32 See (amongst many others) De Witte 1999, pp. 878 et seq.
33 Tridimas 2006, pp. 23-24.
34 A very useful comparative study of the ne bis in idem principle in a number of states was carried out in the framework of the Preparatory Colloquium of the IVth Section of the XVIIth International Congress of the International Association of Penal Law, held in Berlin (Germany) on 1-4 June 2004, and was published in 2004 in “Revue internationale de droit pénal”, vol. 73.
dependently from the specific context of the legal systems in which the prin- ciple exists.
In chapter 3, the suprational context (the criminal law ‘dimension’ of the
EUin the wider sense) is presented and discussed. Particular attention is given to the Third Pillar of theEU, andEC competition law.
In chapter 4 the case law of the Community courts on the ne bis in idem principle and the prohibition of double punishment is discussed and analysed.
Chapter 5 presents the reader with a discussion of the case law of theECtHR
concerning Article 4of the 7thProtocol to theECHR(Article 4P7 ECHR).
In chapter 6, the findings from chapters 2, and 4 and 5 are brought together and further considered against against the background of the supranational context of theEU. Conclusions are drawn.
In chapter 7, the findings from this study are presented.
sources and concepts
In this chapter, the ne bis in idem principle is generally introduced, and some of the main concepts and issues are explained.
2.1 THIS CHAPTER
In this chapter the ne bis in idem principle is conceptually introduced, providing the necessary background for the later analysis of the case law of the Commun- ity courts and theECtHR. In order to provide the reader with some examples, reference is occasionally made to the case law of theECJand theECtHRas well as some other courts.
By way of introduction, some of the main concepts which are explored and disucussed in the remainder of this chapter can be set out briefly as follows:
· There are several ne bis in idem provisions inEUsecondary law instruments and human rights instruments, containing a ne bis in idem rule. These provisions vary as to their wording, scope, and exceptions. Article 14(7)
ICCPR, Article 4P7ECHR, Article 50 of the Charter, and Article 54 of the
CISAare of particular relevance to this study.
· Various rationale can be identified, underlying the ne bis in idem principle.
· Different versions of the ne bis in idem principle exist, which can be divided up into two basic categories of rules: the Erledigungsprinzip and the Anrech- nungsprinzip.
· The scope of application of the ne bis in idem principle can be divided into three elements: the subjective scope of application of the principle (the question who can benefit from the protection offered by the principle), the objective (or: territorial) scope of application of the principle, and the scope of application of the principle ratione materiae or “subject-matter jurisdiction”.
· The first element of the principle is that of bis. The answer to the question whether a subject has been tried or punished again depends on the question whether the first conviction has become final (res iudicata).
· The second, and probably the most challenging element of the ne bis in idem principle is the element of idem: when is an act “the same”?
· In national systems of law, exceptions to the ne bis in idem principle typical- ly exist, in particular in case of newly discovered evidence (novum).
2.2 SOURCES OF THE NE BIS IN IDEM PRINCIPLE IN INTERNATIONAL INSTRU-
MENTS
2.2.1 Introduction
The ne bis in idem principle features in various different forms in regional and international instruments, offering national, regional, or international pro- tection.
Within theUNframework, Article 14(7) of the 1966 International Covenant on Civil and Political Rights (“ICCPR”) contains a ne bis in idem rule. Several other international instruments exist, which contain a ne bis in idem rule: the 1945 Charter of the International Military Tribunal (the “Nuremberg Char- ter”),1the statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia (“ICTY”) and Rwanda (“ICTR”); the statute of the International Criminal Court (“ICC”; “Statute of Rome”), the American Convention on Human Rights, the United Nations Standard Minimum Rules for the Treatment of Prisoners, the Universal Convention on Obscene Publications, and the Unique Convention on Drugs of 1961. AllNATO agreements which contain penal provisions or rules on criminal procedure or assistance in criminal matters contain ne bis in idem provisions.2
Of particular relevance to this study are the ne bis in idem provisions erga omnes3which exist within the respective frameworks of theEUand the Council of Europe, notably Article 4 of Protocol No. 7 to the Convention for the Pro- tection of Human Rights and Fundamental Freedoms (“4P7ECHR”), Article 50 of the Charter of Fundamental Rights of the European Union (the “Char- ter”), and Articles 54 to 58 of the Convention Implementing the Schengen Agreement (“CISA”). These provisions (which will be cited further on) differ considerably from each other, on several points. Article 4 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms only offers protection against trial or punishment in one and the same state. Article 50 of the Charter contains the same rule, but expands its geo- graphical scope of application from the national level to the level of the Euro- pean Union (“…within the Union”). Article 54CISAis worded differently, and
1 The Nuremberg Charter nowadays only carries historical significance.
2 Schomburg 2002, p. 953.
3 A distinction is usually made between ne bis in idem provisions erga omnes (“against all”), and inter partes (“between parties to an agreement”). Whereas erga omnes provisions establish more or less ‘universally’ applicable ne bis in idem rules, inter partes provisions establish a ne bis in idem rule in specific cases, typically in the specific context of judicial cooperation (some examples are several of the Conventions within the Council of Europe). Upon closer examination, this distinction is not as clear-cut as it appears, and its usefulness is rather limited. Article 54 CISA for example, although generally considered as a provision erga omnes, is strictly speaking only a provision inter partes: it only applies between the ‘Schengen states’.
more precisely than the other three provisions. It states that it shall apply to any subsequent set of proceedings on the basis of the same facts in any other Member State than the one where the first decision was taken, finally disposing of someone’s trial.
Ne bis in idem provisions are also found in a number of specific instruments, aimed at establishing judicial cooperation in the field of criminal law within theEU. Article 3, section 2 of the Framework Decision on the European Arrest Warrant (“FDEAW”)4is a provision inEUsecondary law which stipulates that the executing judicial authority shall refuse to execute the European Arrest Warrant (“EAW”) if the person in question has been (finally) judged in a Member State in respect of the same acts, provided that where a sentence has been imposed, the sentence has been served, is being served, or can no longer be served. Article 4 section 2FDEAWrefers to pending criminal proceedings as an optional grounds for refusal of anEAW, and section 5 of Article 4FDEAW
allows for optional refusal if the requested person has been finally judged by a third State. Ne bis in idem provisions (in one form or another) also feature in provisions of several Community instruments: Regulation no. 2988/95 on the protection of the European Communities’ financial interests5, the Conven- tion on the protection of the European Communities’ financial interests6; the Convention on the Fight against Corruption involving Officials of the European Communities or Officials of the Member States of theEU.7The 1987 Conven- tion between the Member States of the European Communities on Double Jeopardy8was only ratified by 6 Member States, and never entered into force, but was nevertheless provisionally applied between those Member States.9 The 1987 Convention is highly similar to theCISA; the latter has effectively superseded it.10
Furthermore, a number of Conventions establishing judicial co-operation in criminal matters adopted within the Council of Europe feature a ne bis in
4 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L 190/1.
5 Article 6 read in conjunction with recital 10 of Council Regulation 2988/95 of 18 Decem- ber1995 on the protection of the European Communities’ financial interests [1995] OJ L312/1.
6 Article 7 of the Convention of 26 July 1995 on the protection of the European Communities’
financial interests, [1995] OJ C316/49.
7 Article 10 of the Convention of 26 May 1997 on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, [1997] OJ C195/2.
8 Brussels 25 May 1987 OJ 1987, L 167.
9 Germany, Denmark, France, Italy, The Netherlands, and Portugal. A list of the signatures and ratifications is available at http://www.consilium.europa.eu/cms3_Applications/
applications/Accords/details.asp?cmsid=297&id=1987009&lang=EN&doclang=EN.
10 The wording of Article 54 CISA is based on that of the 1987 Convention. An important difference between the CISA and the 1987 Convention is that the latter does not provide for a derogation possibility in the event that the crime took place on the territory of the second Member State along the lines of Article 55 CISA.
idem rule.11Two of these Conventions (Article 54 of the European Convention on the International Validity of Criminal Judgments and Article 35 of the European Convention on the Transfer of Proceedings in Criminal Matters, which are nearly identical in wording on the point of their ne bis in idem provisions) “have rather extensive regulations on the ne bis in idem principle on the international level, which are not related to international coopera- tion”.12This broad scope of application is limited by the fact that, similarly to Article 55CISA, both Conventions allow for derogations where the juris- diction assumed by the second state to consider prosecution is founded on the territoriality principle (i.e. in the event the crime took place within the territory of the second state).
“Multiple problems” arise out of the fact that so many instruments exist containing a ne bis in idem rule in some form, each with its’ own random area of applicability.13The overall picture is one of fragmentation.
In the following paragraphs Articles 14(7)ICCPR, Article 4P7 ECHR, Ar- ticle 50 of the Charter, and Articles 54 et seq.CISAare considered in more detail.
2.2.2 Article 14(7)ICCPR
Article 14(7) of the 1966 International Covenant on Civil and Political Rights (ICCPR) reads as follows:
‘no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country’.
This provision was absent from the original text of theICCPR. Its inclusion was first considered in the Human Rights Commission drafting the Covenant in 1951, but disappeared in the background again. There is no mention of the
11 Articles 53-57 of the European Convention on the International Validity of Criminal Judg- ments, Article 9 of the European Convention on Extradition, Article 2 of the Additional Protocol to the European Convention on Extradition, Articles 8&9 of the European Conven- tion on the Punishment of Road Traffic Offences, Articles 35-37 of the European Convention on the Transfer of Proceedings in Criminal Matters, Article 8 of the Convention on the Transfer of Sentenced Persons, Article 17 of the European Convention on Offences relating to Cultural Property, Articles 2, 3, and 14 of the Agreement on illicit traffic by sea, imple- menting Article 17 of the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances; Article 31 of the Council of Europe Convention on Action against Trafficking in Human Beings (conflict of jurisdiction), Article 28 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism.
12 Klip & van der Wilt 2004, p. 1102. The wording of the 1987 Double Jeopardy Convention is based on these provisions. See also: van den Wyngaert & Stessens 1999, p. 787.
13 De la Cuesta 2002, p. 720; Schomberg 2002, pp. 953-954.
principle in the 1954 draft. A second proposal stirred heated debate in the Third Committee of the General Assembly, but made it in the end.14
Article 14(7)ICCPRoffers states that it falls to be applied to “an offence”
(...) “in accordance with the law and penal procedure of each country”. Trechsel points out that, at the time when theICCPRwas drafted, “international criminal jurisdiction was virtually unknown”. Otherwise, “instead of country, the term jurisdiction would have been chosen”.15On the national level this suggestion would not make much difference, as it is clear from the wording of the pro- vision that it applies to the system of criminal law of each country in the sense of lex fori. Internationally however both international criminal courts, as well as some international and supranational organizations can nowadays assume jurisdiction in certain cases. This is a possibility which the wording of Article 14(7)ICCPR does not yet take into account.
The question whether Article 14(7)ICCPR“bears the promise of international application” is disputed.16Little can be inferred with any degree of certainty from the wording of the provision on this point.17 Although some have argued that the provision may apply internationally, there are several known decisions by national courts, as well as an opinion issued by theUNHuman Rights Committee, supporting the view that the provision only applies within one and the same state.18The latter opinion therefore “appears to prevail”.19 Article 14(7)ICCPRrefers to an offence under “the law and penal procedure of each country”. This appears to exclude the possibility of application to proceedings of any other nature, in particular administrative law pro- ceedings.20What the words “law and penal procedure of each country” mean however is contested. They were inserted following a proposal from the Ecuadorian representative, who feared that “finally acquitted or convicted”
would in practice be interpreted too broadly.21 According to Spinellis, the words “law and penal procedure of each country” imply that the state is bound by the obligation to recognise the “whole previous procedure” in another state.22Others have suggested that the words relate to the conviction, im- posing the conditionality of a lawful acquittal or conviction.23
14 Trechsel 2005, p. 382. According to Trechsel, the matter has nevertheless remained contro- versial ever since.
15 Trechsel 2005, p. 386.
16 Spinellis 2002, p. 1152.
17 Spinellis 2002, p. 1152.
18 HRC A.P. v. Italy 16 Juli 1986 (Comm.no. 204/1986); available from http://www.unhchr.ch/
tbs/doc.nsf/MasterFrameView/da4db6de25fbfa7fc1256aca004dc4f3?Opendocument.
19 Spinellis 2002, p. 1152. See also: Bartsch 2002, p. 1165.
20 Spinellis 2002, p. 1153.
21 Trechsel 2005, p. 390.
22 Trechsel 2005, p. 390.
23 Trechsel 2005, p. 390.
On the basis of the wording of Article 14(7) ICCPR24the answer to the question who can rely on the protection offered by this provision appears straight-forward: “no one shall be liable to be tried or punished again (for an offence for which) he (or she) has already been finally convicted or acquitted”.
It is “rather obvious” that only someone who has actually stood trial should subsequently be in a position to benefit from the protection offered by the principle.25It is perhaps remarkable that Article 14(7)ICCPRdoes not contain any exceptions, and does not require that the sentence must have been enforced or is in the process of being enforced.26
2.2.3 Article 4 Protocol 7ECHR
Article 4 of Protocol no. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”; “Article 4P7ECHR”)27reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a funda- mental defect in the previous proceedings, which could affect the outcome of the case.”
Similarly to Article 14(7)ICCPR, Article 4P7ECHRforms a later addition to the
ECHR. The draft provision was prepared by the Steering Committee for Human Rights and finally adopted and opened for signature by the Member States of the Council of Europe at the 374th meeting of the Ministers’ Deputies on 22 November 1984.28This is no coincidence; the reason for including the 7th Protocol was, according to Explanatory Report, that “problems might arise from the coexistence of the European Convention on Human Rights and the
24 Article 4P7 ECHR and Article 50 of the Charter are worded in the same way as Article 14(7) ICCPR on this point.
25 Trechsel 2005, p. 392.
26 Although it is far from clear whether there are in fact any such obligations, the Netherlands made a reservation to Article 14(7) ICCPR, stating that it would not accept any obligations arising out of that provision which go beyond those arising out of Article 68 of the Dutch penal code, Tractatenblad (Netherlands Treaty Journal) 1978, p. 117. See also: Klip & van der Wilt 2002, p. 1093.
27 Strasbourg, 22 November 1984.
28 The Explanatory Report is available from: http://conventions.coe.int/Treaty/en/Reports/
Html/117.htm.
United Nations Covenants”.29In Recommendation 791,30the Assembly urged the Committee of Ministers to “endeavour to insert as many as possible of the substantive provisions of the Covenant on Civil and Political Rights in the Convention”. Against this background, it is unsurprising that the influence of Article 14(7)ICCPRon Article 4P7ECHRis clear. Nevertheless there are also some important differences.
The wording of Article 4P7ECHRlimits the scope of application of the ne bis in idem rule contained therein more clearly and precisely to one and the same state than Article 14(7) ICCPR.31 According to Trechsel, Article 4 of Protocol 7ECHRis generally regarded as both more accurate, as well as more restrictive in nature than Article 14 (7) ICCPR.32 Article 4P7 ECHR stipulates that it falls to be applied in the event of “criminal proceedings under the jurisdiction of the same State”. Similarly to Article 14(7)ICCPR, Article 4P7ECHR
generally refers to the criminal law jurisdiction of the state, regardless of whether the criminal jurisdiction assumed by a state in a certain case is terri- torial, or, for example, personal or universal in nature.
The 7thProtocol was not ratified by all of the Member States of the Council of Europe.33The (practical) limitation in the scope of application of Article 4P7 which results from this is partially compensated by the fact that, according to established case law before theECJthe general principles of Community law are ‘inspired’ amongst other things by the fundamental rights contained in theECHR, and the ne bis in idem principle is amongst those general principles of Community law. Because the Member States are bound by the general principles of Community law when acting within the scope of Community law, the sphere of influence of Article 4P7ECHR also extends into the legal systems of those Member States which have not ratified the 7th Protocol, although only in certain types of situations. This will be further discussed in chapter 5 of this study.
The wording of Article 4P7ECHRdiffers from that of Article 14(7)ICCPR
where it mentions “criminal proceedings”, something “which clearly echoes the term ‘criminal charge’ found in Article 6 par. 1” (ECHR).34According to the Explanatory Report, “(i)t has not seemed necessary (…) to qualify the offence as “criminal”. Indeed, Article 4 already contains the terms “in criminal pro- ceedings” and “penal procedure”, which render unnecessary any further specification of the text of the article itself”. In point 32 this is further em-
29 Explanatory Report, at point 1.
30 Recommendation 791 (1976) on the protection of human rights in Europe, available from http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta76/EREC791.htm.
31 Trechsel 2005, p. 385.
32 Narcisco Da Cunha Rodrigues 2005, p. 167.
33 Belgium, Germany, the Netherlands, Spain and Turkey have signed but not ratified the Protocol, the United Kingdom has not signed it. (http://conventions.coe.int, date: 11/03/
2009).
34 Trechsel 2005, p. 387.
